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The State’s Interest in Retribution

Can liberals consistently be retributivists? Can a theory of punishment that approves the use of state power, not in pursuit of the social goals of crime control and harm prevention, but rather in pursuit of a purely moral objective be consistent with the liberal theory of the state that values rights and liberty as the primary political values? This article addresses these fundamental concerns by critiquing the arguments of Feinberg, Herbert Morris’s freeriding criminal conduct theory, and Michael Moore’s arguments. To answer these questions, it explores a version of liberalism coined communitarian liberalism, which posits that the liberal state exists not simply to protect rights by punishing their violation but also to foster a social climate in which human rights are respected and in which autonomy is a realistic option for all citizens. This allows for positive assistance to the poor, but prohibits negative proscription by the criminal law on completely independent acts. This argument, however, is ultimately rejected in favor of concluding that those versions of retributivism that are fairly weak - representing either side-constraints or secondary aims of punishment - are probably compatible with liberalism. The robust and most emotionally compelling versions of retributivism, however, probably are not.